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Blair v. Berryhill

United States District Court, D. Minnesota

July 19, 2018

April A. Blair, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          STEVEN E. RAU UNITED STATES MAGISTRATE JUDGE

         Pursuant to 42 U.S.C. § 405(g), Plaintiff April A. Blair (“Blair”) seeks review of the Acting Commissioner of Social Security's (“Commissioner”) denial of her application for social security income (“SSI”) and disability insurance benefits (“DIB”). See (Compl.) [Doc. No. 1]. The parties filed cross-motions for summary judgement. (Pl.'s Mot. for Summ. J.) [Doc. No. 17]; (Def.'s Mot. for Summ. J.) [Doc. No. 21]. For the reasons set forth below, the Court denies Blair's Motion for Summary Judgement and grants the Commissioner's Motion for Summary Judgement.

         I. BACKGROUND

         A. Procedural History

         Blair protectively filed for SSI and DIB on January 30, 2014, citing an alleged onset date (“AOD”) of June 12, 2012, which was later amended to October 12, 2012. (Admin. R.) [Doc. No. 11 at 10]. Blair claimed disability due to fibromyalgia, stroke, aneurysms, carpal tunnel syndrome, chronic headaches, joint pain, short-term memory loss, depression, and anxiety. (Id. at 241). Blair's claim was denied initially and upon reconsideration. (Id. at 10). Following a hearing, the administrative law judge (the “ALJ”) denied benefits to Blair on May 9, 2016. See (id. at 7-28). The Appeals Council denied Blair's request for review, rendering the ALJ's decision final. (Id. at 1-3); see also 20 C.F.R. § 404.981.[1] Blair initiated the instant law suit on October 4, 2017. (Compl.).

         B. Factual Background

         At the time of her AOD, Blair was thirty-eight years old which makes her a younger individual. (Admin. R. at 26); see also 20 C.F.R. § 404.1563. Blair completed high school and has a cosmetology license and experience as a cashier, dietary aide, cosmetics salesperson, collection clerk, charge-account clerk, survey worker, cosmetologist, and pizza maker. See, e.g., (Admin. R. at 211-231, 242-243, 314).

         1. Blair's Testimony

         At the hearing, Blair testified as follows. Blair takes care of her three-year-old son and lives with her twenty-two-year-old daughter. (Id. at 41, 43). Blair last worked in a kitchen for a nursing home with employment ending February of 2015. (Id. at 42) She would show up on time for her scheduled hours, but would go home if she could not work through her headaches (Id.). Blair testified that she terminated her employment with the nursing home because the time constraints to complete her work were too stressful. (Id. at 42, 46-47). Further, Blair testified that she has not sought new employment because of the unpredictability of her headaches which occur three to four times a week and typically last a minimum of six hours. (Id. at 43).

         2. Medical Evidence [2]

         Blair was admitted to the hospital on June 12, 2012, for an induction of labor, and while in labor underwent a cesarean procedure because of complications. (Id. at 496). Blair complained of a severe headache and had difficulty speaking during the procedure. (Id.). After the procedure, a CT scan of Blair's head showed a hemorrhage in the left temporal lobe. (Id.). Blair had expressive aphasia throughout her hospital stay, and received physical therapy and occupational therapy until she was discharged on June 24, 2012. (Id.). Blair also had issues with speech, memory, comprehension, headaches, attention, and a decline in intellect as a result of the brain hemorrhage secondary to an aneurysm. See, e.g., (id. at 1481-86). Blair had continued issues with slowed speech with hesitation and difficulties with word retrieval. See, e.g., (id. at 566-567, 667-703). Blair continued with speech therapy and made improvements by comprehending more complex material. (Id. at 728-729). On December 18, 2012, Blair was discharged from speech therapy because her speech therapist, Linda Tyler (“Tyler”), believed Blair had achieved her maximum benefit. (Id. at 908). Specifically, Tyler noted Blair could actively participate at the conversational level with occasional hesitancy and minimal pauses for word retrieval. (Id.). Blair experiences severe headaches affecting her on a daily basis, and the headaches have become more intense with a pain rating ranging from three out of ten to eight out of ten. (Id. at 1026, 1076, 1482). Blair also suffers from impaired memory that has become worse after the AOD. (Id. at 1482, 1484-85, 1992).

         3.Lori Tingle

         Tingle is Blair's therapist at Southwestern Mental Health Center and has seen Blair weekly since May, 2015. (Id. at 49, 51). Tingle testified before the ALJ stating that Blair suffers from side effects as a result of her brain injury. (Id. at 50-51). Tingle testified that Blair has memory loss in different areas including short-term memory and when stressed she will miss appointments if she is not reminded. (Id. at 52-53). Tingle testified that when Blair has a migraine it becomes very difficult to function and that Blair's ability to interact with others is unpredictable and varies from day to day. (Id. at 51-53). Tingle stated that Blair is unsuited for work and has difficulty in her life due to cognitive impairment which includes difficulty remembering the focus of conversations and often requiring redirection to the topic of the conversation. (Id. at 1524-1525, 2460). Tingle reported that Blair has migraines three to four days a week and is unable to function with a migraine. (Id. at 2460).

         4. Dr. Michael J. McGrath

         Dr. McGrath conducted a two-day neuropsychological evaluation of Blair on December 4, 2014, and December 9, 2014. (Id. at 1481-86). Dr. McGrath observed from a personal evaluation that Blair was of dullish-normal intellect, was responsive to interview questions, and spoke clearly. (Id. at 1481). Dr. McGrath also observed that Blair has concentration and memory issues, but can operate a motor vehicle without spatial confusion. (Id. at 1482). Blair obtained an intelligence quotient[3] (“IQ”) score of 71, which is a score in the third percentile and lower than her estimated pre-hemorrhage IQ of 85. (Id. at 1483). The drop in fourteen points between the scores showed a clinically meaningful decline in intellect.[4] (Id.). Dr. McGrath also observed that Blair's memory falls within the “mildly mentally retarded range, ” but Dr. McGrath stated that Blair's memory may be underestimated because she is unable to process information quickly. (Id. at 1484). Dr. McGrath observed that Blair's auditory attention is in the “mildly mentally retarded range” which scored in the second percentile and her visual attention scored within the 0.1 percentile. (Id. at 1484). Because of these problems Dr. McGrath opined that Blair needs to avoid situations requiring concentration and attention. (Id.). Blair's auditory memory was found to be in the “mildly mentally retarded range' at the 0.1 percentile and visual memory in the first percentile indicating that she has very marked memory impairment. (Id. at 1485). Dr. McGrath opined that “it would be important to communicate fairly simply in terms of both vocabulary and grammar, ” that information input to Blair should be slowed, and that Blair likely retains the capacity to do routine and repetitive work. (Id. at 1485-86). Dr. McGrath suggested that it would be psychologically beneficial for her to continue with at least some part-time employment. (Id. at 1486).

         5. Dr. Thomas Bergquist

         Dr. Bergquist evaluated Blair at the Mayo Clinic. (Id. at 1564-67, 2354-55, 2364-67). Dr. Bergquist observed that Blair continues to have severe cognitive dysfunction and her ability to make complex decisions, especially medical and legal decisions, is somewhat questionable. (Id. at 2366). Blair obtained a score of 14 on the Patient Health Questionnaire[5] (“PHQ-9”) and a score of 20 on the Generalized Anxiety Disorder survey (“GAD-7”), which according to Bergquist, was quite elevated.[6] (Id. 2354). Despite these scores, however, Dr. Bergquist opined that there was no indication that Blair had a desire to harm herself or to harm others. (Id. at 2355). Dr. Bergquist further opined that Blair would benefit from the help of her mother and other supportive individuals to overcome her functional disabilities. (Id. at 2367).

         6. State agency psychological consultant

         Upon reconsideration, the State consultant examined the medical evidence and opined on February 2, 2015, that Blair was not disabled. (Id. at 82-99). The State consultant suggested that Blair's impairments could be expected to produce some of the symptoms, but the alleged intensity of the symptoms and how they affect Blair's functioning is inconsistent with the totality of the medical evidence. (Id. at 90). The State consultant opined that Dr. McGrath's medical findings should be given great weight because the findings explained the discrepancies in Blair's tests scores and her ability to perform simple day-to-day tasks. (Id. at 92). The State consultant further opined that Blair's ability to perform day-to-day activities, despite her mental impairments, should be given greater weight. (Id.) The State consultant also suggested that Blair's reports are only partially credible because of the inconsistency of symptoms in her reports. (Id.). The State consultant found that Blair has memory ...


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